State wins latest legal fight over bilingual education system

GARY SCHARRER, Austin Bureau |
March 23, 2010

AUSTIN — A federal appeals court has ruled in favor of Texas in a lawsuit challenging the state's bilingual education system, but the court invited those who brought the suit to retry the case.

The 5th U.S. Circuit Court of Appeals reversed a federal judge's ruling but called the performance of limited English proficient students in Texas “alarming” and ordered the lower court to determine the cause of poor student achievement and how best to fix the problem.

“The court of appeals didn't shut the door on us, but they put some heavy furniture in the way,” said David Hinojosa, a lawyer for the Mexican American Legal Defense and Educational Fund, one of the parties in the 2006 case, which was an offshoot of a suit first filed in 1970.

Limited English students perform much better in the early grades than they do in junior high and high school. Last year, for example, 75 percent of limited English proficient (LEP) students met all standards of the Texas Essential Knowledge and Skills test, known as the TEKS. But only 13 percent of 10th-grade limited English students met all of the TEKS test standards — compared to 57 percent for all 10th-graders and 73 percent for white 10th-graders.

‘Failing all over Texas'

Last year, nearly 800,000 Texas public school students were classified as limited English proficient, about 17 percent of the entire 4.7 million enrollment.

The 5th Circuit threw out a ruling by the late U.S. District Judge William Wayne Justice, in part, because he did not establish that the Texas Education Agency had failed to take appropriate action to overcome language barriers.

The Equal Educational Opportunity act of 1974 requires a state education agency “to take appropriate action to overcome language barriers that impede equal participation by its students.”

By adding school districts to the case, appellate justices said, “The court can better examine the circumstances of specific students, schools and districts, which will be invaluable evidence for determining the cause of LEP student failure and how best to remedy it.”

Hinojosa said MALDEF and other parties would bring failing school districts into a new trial.

“We won't have a problem doing that because they are failing all over Texas … urban, rural, suburban — it doesn't matter,” Hinojosa said.

The facts are not disputed, he said.

“The only issue is: Who is ultimately responsible for their failure? Is it the school district or the state or a combination?” Hinojosa said. “My best bet is that it's at least a combination.”